Monthly Law Journal Article: Staff Use of Force Against Prisoners --Part IV: Firearms, 2009 (1) AELE Mo. L. J. 301.

     A prisoner not involved in a fight between two other inmates claimed he struck in the arm by a shotgun pellet fired by a guard was a nearby catwalk. He allegedly had to wait four days for medical attention, suffering significant pain in the interim. Right after the incident, a medical aide allegedly assured him that she would go and get medication and medical supplies for him, but did not return with it. He asserted a valid claim for excessive use of force, as there was sufficient evidence to support an inference that an officer acted maliciously in using deadly force against prisoners not involved in the fight. The delay in treatment supported a claim for deliberate indifference to a serious medical need. Claims against one officer concerning medical care were properly dismissed, as he summoned medical assistance as soon as he became aware of the prisoner's injury. The prisoner also stated a valid First Amendment claim, based on his assertion that he was transferred to another facility in retaliation for threatening to bring a grievance over the incident. Gomez v. Randle, #11-2962, 2012 U.S. App. Lexis 9656 (7th Cir.).
     Estate of deceased prisoner and his heirs could not pursue, in federal civil rights lawsuit, claims arising from the death of the prisoner, allegedly shot in the head with a plastic bullet by a prison employee, and pepper sprayed by other prison employees who allegedly then placed a plastic bag over his head to increase the harm suffered from the burning effect of the pepper spray. The plaintiffs, in alleging only negligence by the defendants in causing the death failed to show that the defendant supervisory personnel did anything that they should have known would cause prison employees to take actions that would violate constitutional rights. State law claims were time barred, based on the plaintiffs' prior filing of a state court lawsuit that they voluntarily dismissed before attempting to raise such claims in the federal court proceeding. Provencio v. Vazquez, 1:07-CV-0069, 2008 U.S. Dist. Lexis 73255 (E.D. Cal.).
     Even if correctional officer shot and killed the wrong prisoner during violent prison yard fight between two rival gangs, his use of deadly force to break up the disturbance was reasonable and he was entitled to qualified immunity for claims brought by the prisoner's estate. Torres v. Runyon, #02-15273, 80 Fed. Appx. 594 (9th Cir. 2003). [2004 JB Apr]
      Even if there was a triable issue of fact as to whether a correctional officer's decision to shoot a prison inmate in the leg during a disturbance which included an assault on another prisoner was malicious, the officer was entitled to qualified immunity since he could have reasonably believed that shooting this prisoner in order to stop the assault was a good faith effort to restore order. Marquez v. Gutierrez, No. 02-15017, 322 F.3d 689 (9th Cir. 2003). [2003 JB Jun]
    298:149 Officer properly shot detainee in the arm after he obtained possession of another officer's gun and had already shot that officer and another prisoner. Garcia v. City of Boston, No. 00-2369, 253 F.3d 147 (1st Cir. 2001).
     298:148 State of New York was not liable for prisoner's injury in prison yard from stray bullet fired by teenagers in nearby woods where hunting took place. Melendez v. State of New York, 725 N.Y.S.2d 113 (A.D. 2001).
     297:132 Prisoner shot and rendered paraplegic during an escape attempt while being transported awarded nothing by California federal jury on his claim that excessive force was used against him. Mounsaveng v. Krug, No. CIV F 98 6078, U.S. Dist. Ct. E.D. Cal., reported in The National Law Journal, p. B3 (Aug. 13, 2001).
     292:55 Two prison guards who fired shots into prison yard disturbance, one of which struck plaintiff prisoner in the neck, were entitled to qualified immunity, even if plaintiff was being attacked by other prisoners rather than an attacker; shots were being used to quell a serious disturbance and hitting the wrong prisoner was negligence at most, not violation of civil rights. Jeffers v. Gomez, No. 99- 15867, 240 F.3d 845 (9th Cir. 2001).
     277:8 Prisoner's claim that correctional officer used excessive force by shooting him in the leg during prison fight was not barred by disciplinary determination of prisoner's participation in incident, since excessive force could be found without implying invalidity of disciplinary conviction; evidence contradicting findings of disciplinary hearing could be presented. Marquez v. Guttierez, 51 F. Supp. 2d 1020 (E.D. Cal. 1999).
     266:21 Jury awards $2.3 million in damages to estate of prisoner shot and killed by prison guard attempting to break up inmate fight in prison yard; state reaches $2.5 million settlement with prisoner's family following trial. Adams v. Gomez, U.S. Dist. Ct. San Francisco, Cal., November 30, 1998, reported in Chicago Tribune, Sec. 1, p. 8 (Jan. 2, 1999).
     265:6 California Department of Corrections reaches $825,000 settlement in suit over death of inmate shot and killed by correctional officers in order to break up fight with other prisoners. Tate v. Cal. Dept. of Corrections, U.S. Dist. Ct., Fresno, Calif., Nov. 11, 1998, reported in The New York Times, National Edition, p. A25 (November 12, 1998).
     265:6 Correctional officers were not entitled to qualified immunity in lawsuit asserting that they aimed loaded rifle with live ammunition at prisoner without provocation or necessity. Thomas v. Gomez, #97-55702, 143 F.3d 1246 (9th Cir. 1998).
     262:148 Officer properly used deadly force to shoot and kill escaped prisoner who was attempting to evade recapture, even though he did not think that the prisoner posed an immediate threat of physical harm to anyone; Eighth Amendment prohibition on cruel and unusual punishment, rather than Fourth Amendment restrictions on use of deadly force, provided proper legal standard to apply to officer's actions. Gravely v. Madden, 142 F.3d 345 (6th Cir. 1998).
     253:3 Correctional officer liable for $175,000 for shooting prisoner to break up altercation and prison doctor liable for $50,000 for medical malpractice for treatment of prisoner's wounds; fact that state of California would indemnify defendants for damages did not render lawsuit one against the state, so defendants were not entitled to Eleventh Amendment immunity in federal court. Ashker v. Calif. Depart. of Corrections, 112 F.3d 992 (9th Cir. 1997).
     229:8 In suit over death of inmate allegedly shot to death by correctional officer, Eleventh Amendment barred state law damage claims from being asserted by plaintiffs in federal court when damages, if awarded, would ultimately be paid by state. Gaston v. Colio, 883 F.Supp. 508 (S.D. Cal. 1995). [Defenses: Eleventh Amendment].
     232:53 Prisoner allegedly injured by stray bird shot when correctional officer intentionally fired shotgun at another inmate can sue firing officer and two other officers who were present, despite officer's lack of specific intent to injure him; correctional officers not entitled to qualified immunity. Robins v. Meecham, 60 F.3d 1436 (9th Cir. 1995). [Cross-reference: Defenses: Qualified (Good-Faith) Immunity; Prisoner Assault: By Officers].
     238:153 U.S. Supreme Court adopts therapist-patient privilege protecting disclosures during therapy sessions from compelled disclosure in court; affirms ordering of new trial in which jury awarded $545,000 in police shooting case where jury was told it could presume withheld therapy records would be unfavorable to officer. Jaffee v. Allen, 116 S.Ct. 1923 (1996).
     218:21 Deadly force may be used when necessary to prevent escape of pre-trial detainee, even when he is unarmed and is not thought to be dangerous to an officer or other person; Federal appeals court rejects argument that Tennessee v. Garner rule applies to escaping prisoners; U.S. Supreme Court declines review of case. Brothers v. Klevenhagen, 28 F.3d 452 (5th Cir. 1994), cert. denied, No. 94-795, 115 S.Ct. 639 (1994).
     Halting escape of 18-year-old convicted car thief by shooting him was not excessive use of force. Kinney v. Indiana Youth Center, 950 F.2d 462 (7th Cir. 1991).
     Officer was entitled to qualified immunity for shooting and killing unarmed pretrial detainee who attempted to escape when he was brought to court for a hearing, when only a Fourth Amendment claim was asserted. Wright v. Whiddon, 951 F.2d 297 (11th Cir. 1992).
     Fourth Amendment's reasonableness standard, rather than Eighth Amendment "cruel and unusual punishment" standard applied to shooting of escaping pretrial detainee by police officer. Wright v. Whiddon, 747 F.Supp. 694 (M.D. Ga. 1990).